FORMS OF EVIDENCE

ORAL
 THE NATURE OF ORAL TESTIMONY
• Oral evidence is the firsthand account of events - provided by testimony/viva voce evidence in
criminal (s161 CPA) and civil (s 42 CPEA) proceedings;
• Oral testimony made under oath, in court, and in the presence of all the parties (CL principle -
audi alteram partem principle);

Most forms and categories of evidence are admitted at trial by a witness giving oral evidence
through examination-in-chief:
• Real evidence - admitted via expert witness - who must explain the probative value of the
physical evidence
• Documents – admitted via author of/witness to the document – who must attest to the
document’s authenticity
• Electronic evidence - admitted via author of data message – who must attest to the data
message’s authenticity

Parties have an opportunity to challenge the evidence presented by witnesses testifying against
them by way of cross-examination (Constitutional principle s 35(3)(i)):
• Oral evidence allows the court to evaluate a witness’s demeanour, mendacity and
draw inferences as to the credibility of the witness (S v Adendorff 2004 2 SACR
185 SCA).
• Note: Sign language by deaf and speech-impaired witnesses falls within the
concept of viva voce testimonial evidence, as does non-verbal expressions – by a
witness under the age of 18 years (S 161(2) CPA.
 Criminal trials:
• Oral evidence is required in almost every circumstance.
• The complainant, the investigating officer and all relevant witnesses should testify.
• Once the State has closed its case, the defence is afforded an opportunity to present its evidence.

• As with the State’s case, the defence adduces oral evidence via relevant witnesses testimony.
• However, unlike the State’s case, there is no obligation on the defence to do so and the
defence may elect to close its case without presenting any oral evidence at all.
• Why – in the circumstance where the defence is of the opinion that the State has not
established a prima facie case and therefore there is no need to rebut the State’s case
• Where – the accused elects to invoke his/her constitutional right to silence
 Civil trials (action proceedings not motion proceedings):
• Oral testimony required to enable the court to decide on the facts-in-issue of the
dispute.
• Oral testimony is necessary as it allows for a proper examination of the merits of
the evidence and for the opportunity to observe the demeanour and assess the
credibility of the witnesses
• Motion proceedings are on the papers - oral evidence is only exceptionally
admitted
 Testimony must be given on oath or affirmation:
Oath/affirmation administered by the judge, registrar or presiding officer.
The oath - s162 CPA:
‘I swear to tell the truth and nothing but the truth, so help me God.’

A witness may object to taking the oath;

The affirmation - s163 CPA:
‘witness affirms that he/she will speak the truth’.

• A witness giving false/untruthful testimony in witness box - faces C.L perjury or statutory perjury
charges.
• Ss 39, 40 and 41 CPEA contain similar perjury provisions for civil proceedings.

Unsworn evidence- an admonishment:

• when a witness (i.e. child) does not understand the nature of an oath or affirmation s164 CPA & s 41
CPEA allow such a witness to testify without taking an oath or affirmation.
• the presiding officer is required to admonish the witness to speak the truth.
• The admonishment has the same legal effect as an oath or affirmation.
 The intermediary and child witness (pgs 53-55):

S 170A(1) CPA - the appointment of an intermediary where a child witness (less 18

yrs) is obliged to testify and may be exposed to ‘undue mental stress and suffering’
where confronted by the accused in an open courtroom

• Usually reserved for testimony in sexual offences cases.

• The intermediary is a court official, but not a lawyer, usually a social worker or
psychologist although the class of people from which intermediaries may be appointed is
wider.
• intermediary must be impartial/unbiased.
• In practice, the child witness does not physically confront the accused, but is placed in a
separate room.
• The accused/defence states its questions to the intermediary who will then relay them to the
child witness – usually by way of an electronic medium
• The child witness gives all evidence through the intermediary.
• This includes examination-in-chief, cross-examination and re-examination.
• The court may pose questions directly to the child but all other parties must pose their
questions to the child through the intermediary
• The intermediary’s role is that of a channel between the parties and the child
witness.
• The intermediary cannot initiate a particular line of questioning or
formulate answers to any question.
• S 170A(2)(b) CPA does allow the intermediary some flexibility to re-word a
question for the sake of clarity

K v The Regional Court Magistrate NO and Others 1996 (1) SACR 434 (E))
The constitutionality of s 170A was objected to on the ground that it unjustifiably infringes the
accused’s right to challenge evidence and for infringing the accused’s right to a public trial;
The Court rejected above argument holding:
• that the defence is still in control of the process of examination-in-chief, cross-examination
and re-examination of the witness through the intermediary;
• the intermediary merely conveying questions to child and does not influence the child in any
way;
• parties still retain their ability to freely question witnesses or to probe a particular aspect of a
case just as they would in the usual adversarial environment of a public forum.
Director of Public Prosecutions, Transvaal v Minister of Justice and Constitutional
Development, Phaswane, Mokoena and Others 2009 (4) SA 222 (CC).
The constitutionality of s 170A was challenged on the basis that it does not do enough to protect
child witnesses

Con Crt held:

• S 170A(1) was intended to protect child complainants from being exposed to undue mental
stress or suffering caused by giving evidence in court and that it succeeded in doing so by
providing for the intermediary process;
• the State must have the child witness assessed prior to testifying to determine whether an
intermediary should be appointed
• S 170A does reasonably protect the child during the questioning phase of a trial
 Procedural dangers of s170:
A court faced with an application for the s 170A procedure must consider the
procedural dangers inherent in the use of an intermediary and possible prejudice
to the accused’s right to a fair trial.

The procedural dangers are:

 cross-examination through an intermediary may be less effective than direct
cross- examination of a witness;
 an accused prima facie has the right to confront his/her accusers and be
confronted by them;
 human experience shows that it is easier to lie about someone behind his/her
back than to do so to his/her face.
 The use of closed-circuit television and other electronic media:
S 158(2)(a) CPA.
Allows a court, either on its own initiative or on application by the prosecution, to
order that a witness, or an accused, may give evidence by means of closed-circuit
television or other such electronic media;
• This can only be done if the witness or accused consents to such an order

The factors a court must consider:

• Prevents unreasonable delay
• Save costs
• Is convenient
• Is in the interest of the security of the State, public safety or in the interests of
justice
• Prevents the likelihood that prejudice or harm might result to any person testifying
at such proceedings.
Preparing a witness for testimony at trial:

Precognition:
• A legal practitioner may advise a witness on the giving of testimonial evidence;
and what, in summary, is expected of such testimony.
• A legal practitioner may also advise a witness as to what issues may arise, and
• The questions in cross-examination likely to be faced
• However, a legal practitioner cannot tell a witness what to say when in the
witness box.
• This is unethical and such evidence will also carry no weight as it is no longer
the witness’s own evidence.
• There is also a risk that should the cross-examination become too much to bear
for the witness, he/she may justify an answer by stating, ‘My lawyer told me to
say that”
 Exceptions to oral evidence
Affidavits:
• HCR 38(2) – in the High Court it is possible in limited circumstances to admit, by way
of affidavit, the evidence of a witness who cannot personally attend a trial.
• The procedure is limited to formal types of evidence or evidence which is unlikely to
be contested by the opposing party.
• S 22 CPEA makes provision in both the Magistrates’ Courts and the High Court for
the admission of evidence of a technical and scientific nature to be taken on
affidavit from a witness in state or provincial service.

Evidence on commission:
• HCR 38(3) & s 53 Mag Crts Act provide for evidence on commission in civil
proceedings.
Interrogatories:
• HCR 38(5) & S 39(1) Sup Crts Act provide for interrogatories for civil proceedings in
the High Courts. Similarly, s 52 of the Mag Crts Act makes provision for
interrogatories in Magistrates’ Courts